04 August 2004

Virginia Court of Appeals

Farnsworth v. Commonwealth: Subject: If a felon has his right to possess a firearm restored in another State does he have the right to possess a firearm in Virginia?

The court adopts a plain reading of Virginia Code § 18.2-308.2. Under this section once convicted of a felony in "the United States or any territory thereof" (West Virginia) even should an "other appropriate authority" (West Virginia) restore a person's civil rights that person must either "petition the circuit court of the jurisdiction in which he resides for a permit to possess or carry a firearm" or receive a pardon from Virginia's governor. As neither of these events had occurred the person is guilty of possessing a firearm as a felon.

The court finds that the Defendant did not properly preserve his appellate argument that under U.S. Const. Art IV, sec 1 the Commonwealth of Virginia is bound by West Virginia's restoration by "full faith and credit" requirements.

[comment] It's a harsh outcome but I think it is an accurate read of the statute. I just keep wondering how many people in the Commonwealth have come here thinking that they have no problems and are in violation of a law that would mandate their imprisonment for 2 or 5 years.

Logan v. Commonwealth: Subject: Under Virginia Code § 18.2-474.1 would conviction of possession of a drug trigger jeopardy and therefore bar a conviction for delivery to a prisoner?

[facts and procedure] Defendant delivered marijuana to an inmate. Defendant pled guilty to midemeanor possession of marijuana in general district court and then tried to use that conviction as a bar to the felony delivery charge in circuit court.

[finding] Because the statute allows a conviction for conspiracy to deliver, possession of marijuana is not a lesser included offense.

[comment] As I read the drug section of this statute there are 3 separate crimes: (1) delivery, (2) attempt to deliver, and (3) conspiracy to deliver. Either (1) or (2) should be barred by jeopardy. (3) would not but the decision lacks a description of facts sufficient for me to come to a conclusion as to whether there was a group of people involved or if this was just a deliverer and a recipient (and thus not a conspiracy).

This comes across as a Defense attorney being procedurally clever (cudos), the prosecutor not catching it, and the courts moving to "do justice." I really want to know the facts here and find it a little curious that there isn't even a paragraph explaining them.

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